Checks, Balances, and Wartime Detainees

Policy Review – Hoover Institution, April 1, 2005

The day the Supreme Court handed down what have collectively become known as the enemy combatant cases — June 28, 2004 — was both widely anticipated and widely received as a legal moment of truth for the Bush administration’s war on terrorism. The stakes could not have been higher. The three cases came down in the midst of election-year politics. They each involved challenges by detainees being held by the military without charge or trial or access to counsel. They each divided the Court. And they appeared to validate or reject core arguments that the administration had advanced — and had been slammed for advancing — since the fight against al Qaeda began in earnest after September 11, 2001.

The dominant view saw the cases as a major defeat for President George W. Bush — and with good reason. After all, his administration had urged the Court to refrain from asserting jurisdiction over the Guantanamo Bay naval base in Cuba, and it did just that in unambiguous terms: “Aliens held at the base, no less than American citizens, are entitled to invoke the federal courts’ authority.”1 The administration fought tooth and nail for the proposition that an American citizen held domestically as an enemy combatant has no right to counsel and no right to respond to the factual assertions that justify his detention. The Court, however, held squarely that “a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.”2 It held as well that “[h]e unquestionably has the right to access to counsel” in doing so. These holdings led the New York Times (June 29, 2003) to call the cases “a stinging rebuke” to the administration’s policies, one that “made it clear that even during the war on terror, the government must adhere to the rule of law.”
A dissident analysis of the cases, however, quickly emerged as well and saw them as a kind of victory for the administration dressed up in defeat’s borrowed robes. As David B. Rivkin Jr. and Lee A. Casey put it in the Washington Post (August 4, 2004):

In the context of these cases, the court accepted the following critical propositions: that the United States is engaged in a legally cognizable armed conflict with al Qaeda and the Taliban, to which the laws of war apply; that “enemy combatants” captured in the context of that conflict can be held “indefinitely” without criminal trial while that conflict continues; that American citizens (at least those captured overseas) can be classified and detained as enemy combatants, confirming the authority of the court’s 1942 decision in Ex Parte Quirin (the “Nazi saboteur” case [317 U.S. 1 (1942)]); and that the role of the courts in reviewing such designations is limited. All these points had been disputed by one or more of the detainees’ lawyers, and all are now settled in the government’s favor.

Even among those who celebrated the administration’s defeat, this analysis had some resonance. Ronald Dworkin, for example, began his essay on the cases in the New York Review of Books (“What the Court Really Said,” August 12, 2004) by triumphantly declaring, “The Supreme Court has finally and decisively rejected the Bush administration’s outrageous claim that the President has the power to jail people he accuses of terrorist connections without access to lawyers or the outside world and without any possibility of significant review by courts or other judicial bodies.” But he then went on to acknowledge that the Court had “suggested rules of procedure for any such review that omit important traditional protections for people accused of crimes” and that the government “may well be able to satisfy the Court’s lenient procedural standards without actually altering its morally dubious detention policies.” How big a rebuke could the cases really represent if they collectively entitle the president to stay the course he has chosen?

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